No.2790 ---May 7, 1878

STEP-SON—A
stepson is not such a relation as would, under Sec. 1310, C. C., prevent a
legacy from lapsing.

Construing sections, C. C., 1310, 1331; affirmed, 48 Cal., 643

Gray & Haven, for
applicant.

George &
Loughborough, contra.

Deceased made a will by which she bequeathed $4,000 to
herstep-son.The step-son died before the testatrix, leaving a daughter, who
now applies for distribution to herself of the $4,000.

LOUGHBOROUGH---The legacy lapsed, as the devisee died before
decedent, and the applicant is not within Sec. 20 of the act concerning
wills.The applicant is not a
relation.That act refers only to a
devise of real estate.

[Bouvier and Burrill, titles“Devise” and“Relation.”]

HAVEN--Conceding that at common law the legacy would lapse,
and that in a narrow sense “relation” means blood relation, Sec. 20 does not
restrict us to this construction. (36 Cal., 329, as to devise.)The statute uses these words, legacy and
devise, as convertible terms.The New
York statute says, “may devise real and personal property.”1 Bradf., 116.The popular meaning of the word “relation” should be taken.Webst. Dic. adopted, 2 Sand. Ch., 506.Meaning of this statute: 3 Bradf., 317; 7
Mass., 86; 18 Pick., 43; 1 Vesey, sen., 84.The statute should be construed liberally.Sedg. On Stat., p. 317, 379, 285; 15 Mass., 206; 7 Mass., 524; 12
Mass., 384.

By the COURT:Testatrix published her will June 19, 1869, bequeathing a sum of money
to “Louis Washington Johanning, my step-son, he being the son of my former
husband, Louis Johanning, by a former marriage.’Louis W. died May 19, 1872, leaving him surviving one child, the
petitioner.Testatrix died Sept. 22,
1872.Petitioner asks for distribution
of the legacy, claiming the same as heir of Louis W.The executor resists the application on two grounds:First, that under Section 1310, C. C., the
term devise limits the application of
the section to real estate; Second, that Louis W. was not a relative of
testatrix, and the legacy lapsed, he dying before testatrix.The first point is not well taken.The word devise is generally applied to
passing real estate by will, but is not necessarily exclusive.The second point is well taken.A step-son is not a relation within the
meaning of Sec. 1310, C. C.Esty, adm’r, v. Clark 101 Mass., 36, is a decision under a similar
statute, and is directly in point.It
is there decided that a wife is not a relation of the husband within the
meaning of the statute, and that her son by a former husband will not succeed
to her rights by virtue of the statute.Petition denied.